Practice Areas

Employee Rights

Employment Background Checks

Have you been denied employment or fired on the basis of a background check, criminal history report or credit report? Too often, employers violate federal and state civil rights laws by denying jobs to people based on information in their background checks.

If you have been denied a job, denied a promotion, or fired simply because of information in a background check or credit report you may be able to sue for money damages.

Use of Criminal Background Checks for Employment Purposes

If employers rely on a background check to not hire or to take other adverse action against an applicant or employee, they must follow strict notice rules under the Fair Credit Reporting Act (FCRA).

Unfortunately, it is all too common for many employers – including some of the nation’s largest companies – to ignore these laws. According to a recent study published by the National Employment Law Project, “the nation’s largest employers are either unaware of civil rights and consumer protections for people with criminal records or are indifferent to them.”

E. Michelle Drake

Employment Law Attorney
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Employers who willfully violate these rules can be required to pay actual damages, punitive damages, and statutory penalties of up to $1,000 per violation. Some of these rules are listed here:

Before an employer can run a background check:

  • Applicants and employees must consent to the background check in writing; and
  • Applicants and employees must be provided with a stand-alone disclosure which does not include a liability release.

Before an employer can deny employment or fire someone based on a background check:

  • They must provide the applicant or employee with a copy of the report they intend to rely on; and
  • They must tell the applicant or employee they intend to take adverse action based on the background check report and give the applicant or employee reasonable time to dispute the report.

If an employer ran a background check on you without your permission, or took adverse action against you without giving you a copy of the report and time to dispute it, you may be able to sue the employer for money damages.

Content of Criminal Background Checks

Any report about you should be accurate.  Consumer reporting agencies make lots of mistakes. For example, reporting agencies are not supposed to report information if it is too old.  How old is too old? In general, when an employer is running a background check, consumer reporting agencies are not supposed to report anything negative about you if it is older than seven years.  There are some exceptions, such as information about criminal convictions.  Many background companies include information that they should not include, such as traffic offenses that are older than seven years or information about dismissed criminal charges.

If your report has these types of errors or includes information that it should not include, you may be able to sue the consumer reporting agency or background check company for money damages.

You are Entitled to a Copy of Your Background Check

Many people know they are entitled to receive a free copy of their credit report, but they don’t know they are also entitled to a free copy of any background check or criminal history report obtained for employment or other purposes.  If an employer ran a background check on you and did not give you a copy, you can request one directly from the background check company.  Click here for a form you can use to request a copy of your background check.  Or, you can contact us if you would like help in requesting a copy of your report.

Our firm is always willing to review a copies of background checks to help people identify errors or illegal reporting.  If you’d like us to review your report, please contact us

Racial Disparities Resulting from the Use of Criminal Background Checks

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new guidelines reaffirming that it is illegal for employers to use arrest and conviction records to exclude job-seekers unless those records are directly related to the job.

While the law does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, employers are not permitted to discriminate based on race, ethnicity, color, national origin, or sex.

Some employers have reacted to discrimination by using it to their advantage and holding themselves out as “felon friendly.”  If you are a felon, and you are looking for a job but having a hard time getting hired, contact us to learn more about your legal rights.

Types of Discrimination:

Disparate Impact: A seemingly neutral employment policy, such as a criminal background check, that disproportionately excludes applicants based on race or national origin may be illegal if the employer cannot demonstrate that the policy is job related for the positions in question and consistent with business necessity.

For instance, because black and Hispanic men are arrested and convicted at a statistically higher rate than white men, excluding individuals from employment based on the existence of a criminal record may illegally screen out minority applicants.

An estimated 65 million people in the United States—or 1 in 4 adults—have an arrest or conviction record that can show up on a routine criminal background check for employment, according to the Council on Crime and Justice. 1 in 3 black men and 1 in 6 Hispanic men will serve time in jail during their lifetimes, compared to 1 in 17 white men, according to the EEOC.

Disparate Treatment: It is illegal for an employer to treat criminal history information differently for different applicants or employees, based on their race or national origin. This means that two applicants with similar criminal histories—white and black applicants with misdemeanor convictions within the past five years, for instance—must be treated the same.

Arrest Records:

Simply being arrested does not prove that you have committed a crime, and being excluded as a job candidate based on an arrest alone may be illegal. However, an employer may make an employment decision based on the activity that resulted in the arrest if it is job related.

What should you do if you think you have a claim related to an employment background check?

Save any documents related to the application process, including a copy of the application (if you have one) and any letters you received from the employer. Also save emails, text messages, Facebook messages, and any notes you made during the process.

Provide the employer with information you would like them to consider. If your conviction was expunged, if you have a strong job history, if you have rehabilitated yourself, or if there is other information that you think should be considered, contact the employer and ask them to reconsider your application in light of that information. Keep copies of anything you send in writing, and make notes of your conversations.

Act quickly. Deadlines known as statutes of limitations may limit your ability to bring claims, so it is important that you act quickly to preserve your rights. Consider contacting our firm as soon as an employer notifies you that your criminal background may cause you not to be hired.

If you believe that your rights have been violated, our law firm may be able to help.

If you believe that you may have been the victim of an improper background check or that your credit report may have been improperly used by your employer, please contact us to take action.